354 NATIONAL CABLE & TELECOMMUNICATIONS ASSN.,
INC. v. GULF POWER CO. Opinion of Thomas, J.
certiorari, for instance, the FCC complained that the Court of Appeals "mistakenly felt compelled to address whether a cable company's provision of Internet access is properly characterized as a 'cable service,' a 'telecommunications service,' or an 'information service.' " Pet. for Cert. in No. 00-843, p. 15, n. 4. It then clearly stated, "To date, the FCC has taken no position on that issue." Ibid. (emphasis added). The FCC not only repeated this contention in its merits brief, see Brief for Petitioners in No. 00-843, p. 30, but also explicitly asked this Court not to evaluate whether high-speed Internet access using cable modem technology is "a 'cable service,' a 'telecommunications service,' or some other kind of service," ibid., even if we concluded such an inquiry was necessary to determine whether the FCC could regulate rates for attachments providing commingled cable television programming and high-speed Internet access. The reason it gave for this request was simple: The FCC should be allowed to "address the characterization issue in the first instance." Id., at 31 (emphasis added).
Outside of this litigation, the FCC has also unambiguously indicated that it holds "no position" as to whether high-speed Internet access using cable modem technology constitutes a telecommunications service. For example, in an amicus curiae brief submitted to the United States Court of Appeals for the Ninth Circuit, the FCC stated: "To date, the Commission has not decided whether broadband capability offered over cable facilities is a 'cable service' under the Communications Act, or instead should be classified as 'telecommunications' or as an 'information service.' The answer to this question is far from clear." Brief for FCC as Amicus Curiae in AT&T Corp. v. Portland, No. 99-35609 (CA9), p. 19.5 Just last year, in fact, the Commission issued a notice
5 The FCC's amicus curiae brief in AT&T Corp. v. Portland is completely inconsistent with the Court's position that the FCC has not decided whether high-speed Internet access using cable modem technology constitutes cable service but has concluded that such Internet access is not a
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